Living, as I do, in what Alexander Woollcott impatiently termed 'that nasty and silly city of Boston' and deriving my livelihood from publishing, I am naturally sensitive on the subject of book censorship. In itself censorship is an impatient theme, and when it calls for a law so unjust and an enforcement so unhappy as that in operation in Suffolk County (which contains the city of Boston) one is apt to follow Mr. Woollcott's example and lose one's temper. For two years I have served on committees which have endeavored to reform the Massachusetts laws 'relating to obscene literature.' In the course of this service I have come into dose contact with the actual practice of censorship and have gained, perhaps, more than a parochial perspective of the whole vexed question.
In a little over two years sixty-eight books have been suppressed in Boston. Only two of this number — The American Tragedy, by Theodore Dreiser, and Oil, by Upton Sinclair — were brought to trial. The other sixty-six were thought to be subject to the present Massachusetts statute, and so, according to the strict letter of the law, they may have been. Complaints, however, were lodged against them only in Suffolk County, where, in most cases, they were promptly withdrawn from sale; but, since officials throughout the other districts of the Commonwealth did not feel called on to take any action, we have the anomalous situa-tion of books being banned in Boston yet being sold openly in Cambridge, only three miles away.
But Boston is not alone in her trouble. In the fall of 1928 the officials of the United States Customs Bureau and the postal authorities held a conference, as a result of which 789 books were blacklisted from importation into this country. Of these books, 879 were written in the Spanish language, 281 were in French, 5 were in Italian, 10 were in German, and the remaining 114 were in English. I shall take up the list in greater detail, later.
We should also remember that at the request of the Home Secretary English publishers last winter withdrew two recent novels, Sleeveless Errand and The Well of Loneliness, both of which, as the sequel showed, were pure enough for circulation in the United States. In Ireland a new censorship law is being invoked which, if it is passed, will remove from circulation those books which 'tend to inculcate principles contrary to public morality,' and, as though to exemplify their object, private citizens and public associations — armed with revolvers — have been seizing and burning such radical journals as the London Observer and the London Sunday Times. Blasco Ibaftez, the Spanish novelist, — author of The Four Horsemen of the Apocalypse, — died recently in exile for having dared to criticize the authorities in Spain. The Soviet Government on coming into power condemned Russian classics — Dostoevsky, Tolstoy, and others — which but a few decades earlier had been suppressed by the Tsarist Government for being too revolutionary. And what do you think would happen to a citizen of Rome who undertook to write a biography of Mussolini in the modern manner?
Such evidence could be gathered from almost any civilized age and country; it is, I am sure, sufficiently strong to demonstrate that censorship wherever it exists is as much a problem for the police as for the critics. And, like the poor, it is always with us. In times of stress — such as the late war — it is practised with a rigorous hand and accepted with little complaint. In times of peace, policing is relaxed, and then, as in the present day, we have pause in which to revive our confidence in free speech. Despite the exigencies of war, however, it is our duty as citizens to see that our laws relating to obscene — and other — literature are as just and discriminating as wisdom can provide.
Frankly, I am only distantly interested in the Continental censors, but the censorship laws of England and the United States — which bear, it seems to me, a marked resemblance to each other, and which lately have begun to strike so close to home — interest me enormously. I should like to consider them separately with the hope of deriving, first, an explanation of their vagaries, and then, perhaps, a solution to the problem that has come to trouble so many of us.
In England the proceedings against books are taken under Lord Campbell's Act 'for more effectually preventing the sale of obscene books, pictures, prints and other articles.' Introduced in 1857, this Act was regarded as a mere police measure. Little Dorrit was published in that year and The Tale Two Cities two years later. This was not an age in which outspokenness on delicate matters was either encouraged or allowed. Desmond MacCarthy tells us that the Act aroused little interest among literary men; Disraeli, Macaulay, and Bulwer-Lytton, the leading men of letters in politics, were silent. The Athenaeum took no notice of it. Its prime object was the suppression of a trade in obscene books and pictures which flourished at that time, particularly in Hollywell Street, London. When Lord Campbell introduced the bill — now an Act — into the House of Lords, he said that 'the measure was intended to apply exclusively to works written for the single purpose of corrupting the morals of youth and of a nature calculated to shock the common feelings of decency in any well-regulated mind.' Debate ensued. But at a later meeting the noble lord said that
since he last addressed them he had received information of a most appalling nature with regard to the sale of these publications; but ... for decency's sake he would not dwell upon them. But he held in his hand a volume which would give their lordships a notion of what was going forward. It was by Dumas the Younger and was called The Lady of the Camellias.
La Dame aux Camélias was too much for the House and they passed the bill.
Under this Act the first step is a complaint made before a magistrate at an obscene book is being sold. The magistrate, if he is of opinion that the book is obscene and is being sold and that the 'publication of the book is a misdemeanor and proper to be prosecuted as such,' makes an order for the seizure of the book. The vendors, or publishers, are summoned to appear and show cause why the article should not be destroyed. After hearing the parties, the magistrate makes his order, which is subject to appeal to the Quarter Sessions. It is clear from the wording that it is not sufficient to prove that a book is obscene in order to justify its destruction. The phrase I have quoted above is a clear direction to the magistrate not to condemn a book because he is shocked by it himself, but to ask himself what conclusion a jury ought to reach after hearing all that could be urged in the publisher's defense. In the end, however, he must come back to his own personal reactions to the book in his endeavor to answer the question, 'Is it likely to corrupt?' Fortunately English justices are notably conscientious.
Though this Act had its origin in an age far less outspoken than our own, thanks to the sapience of English law it has never proved as burdensome as the censorship laws in the United States, which came, as it were, from the same family tree. In the past year Lord Campbell's Act was, as I have said, successful in suppressing two recent English novels. Two is a paltry number when compared to the Massachusetts black list of 68 or the Customs library of 739, and I might point out in further extenuation that one at least of these two dealt with a homosexual theme. Finally, let me emphasize the fact that by the law the censorship is in the hands of a jurist supposedly — and often actually — of high intelligence. The magistrate in the recent case which I have mentioned was Sir Chartres Biron, who is, I understand, an extremely well-read man and a writer as well as a lawyer of note.
There are several departments of the United States Government which take an interest in censorship. There is the Post Office Department, the Copyright Office, and the Customs Bureau, which is a subdivision of the Treasury Department. But it is the vigilance of the Post Office and the Customs which needs seriously concern us here.
Up till 1873 there had been vigorous objections to granting to the Post Office the power of excluding matter from the mails, but in that year Anthony Comstock secured the Postal Censorship Law. Thenceforth, obscene matter was to be excluded from the mails together with lotteries, explosives, and innumerable frauds of the Get-Rich-Quick Wallingford character. The Law is administered by Federal postmasters who need not appeal to the verdict of a jury. They act simply on their own discretion, and it is extremely difficult to secure review of what is done. Naturally, such censorship has had an eccentric career. At various times and in various places a number of magazines, among them the Little Review, Life, the New Masses, Physical Culture, Hearst's Magazine, and the American Mercury, have been barred from the mails.
One postmaster barred a copy of Ovid's Metamorphoses intended for a professor of Johns Hopkins. Another, more recently, interrupted, the passage of a publisher's catalogue which listed an edition of the Decameron. Tolstoy's Kreutzer Sonata was excluded by the New York post office in 1890. Swedenborg's Amos' Conugalis, published in 1768, was excluded by the Philadelphia post office in 1909; and in 1911 postal authorities excluded from the mails the official vice report of the city of Chicago. In 1922 an edition of the Decameron was confiscated by the Cincinnati post office, and for having it in his possession a bookseller was later fined one thousand dollars by the district judge. Surely it is apparent that policing of this sort, when it is entrusted — as it must be — to men of moderate, or less than moderate, literary discrimination, is little short of absurd.
The censorship of the Customs Bureau is, it seems to me, less eccentric in its evolution and much more in keeping with the changes which have occurred in some of our states. In 1842 Congress passed the first law giving customs clerks the right of censorship. Like Lord Campbell's Act, this law was originally aimed at pornographic literature and pictures. Its first terms were mild: —
Section 28: — That the importation of all indecent and obscene prints, paintings, lithographs, engravings and transparencies is hereby prohibited.
The tariff laws of 1890 and 1894 amended this to read: —
That all persons are prohibited from importing into the United States from any foreign country any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure or image, etc., etc., etc.
But it was not until 1909 or thereabouts that people realized that the law could be construed in ways which would bar out various pieces of art and literature not previously excluded. In 1909 an attempt was made under this section to prevent the Field Museum from importing Chinese pictures and manuscripts, very important to them, on the ground that they were obscene. Not to multiply examples ad nauseam, let us come down directly to the conference between the Customs Bureau and the postal authorities which was held in the autumn of 1928, and of which brief mention has already been made. As you will remember, a black list the size of a considerable library emerged from this meeting. Further works were added to it in April 1929. As one reads over the horrid roll one is struck, first, by the curious discrimination which seems to have been made against the Spanish tongue. Mademoiselle de Maupin, by Gautier, is allowed by the censors to enter the country in its original print and in English translation, but in Spanish it is forbidden. The same is true for the Mémoires of Brantôme. Pietro Aretino the sixteenth-century Italian, is admitted when he speaks his original tongue or is translated into English, but in Spanish dress he is forbidden. On the other hand, The Arabian Nights in its literal English translations by Payne and Burton is perfectly passable, but when it has been translated into French by Mardrus it is a book no American citizen can touch. Finally, such books as the novels of Balzac, the Confessions of Rousseau, and the works of Voltaire and Rabelais have been declared ineligible to enter the country under this provision in the Tariff Act.
Two recent episodes add their humor to the situation. In February 1929,18 copies of Voltaire's Candide destined for use in a Harvard classroom were confiscated by a customs official on their entry into Boston. A protest was entered and the decision referred back, presumably, to a higher expert in Washington. But it was not till August that the books were released. The classroom, of course, by that time was empty. In April 1929, a copy of Rabelais being imported by the book collector A. Edward Newton of Philadelphia was confiscated by a New York customs inspector 'acting under Section 305-A of the Tariff Act.' In his letter of protest to the Customs Mr. Newton wrote in part as follows: —
The action of your representative is positively glorious! Rabelais is one of the world's classics: it is no more obscene than are Shakespeare and the English Bible. In order that you may not be the laughingstock of the world, I beg that the volume be sent to me immediately; but for no other reason, for one can secure a copy at any well-ordered bookshop or library in the United States.
I am not a youth seeking to gloat, surreptitiously, over a smutty book, but a student of mature years, the possessor of an important library, and the author of The Amenities of Book Collecting, A Magnificent Farce, Doctor Johnson — A Play, The Greatest Book in the World (a study of the Bible), This Book-Collecting Game. Moreover, I have a copy of the first edition of Rabelais, which is worth several thousand dollars.
If you keep or destroy my Rabelais, it will be in my power to make you and your department ridiculous the world over. This would afford me much greater pleasure than the possession of the book.
But Mr. Newton's Rabelais has not yet been returned. Deputy Commissioner J. D. Nevius is the man who reads and passes on suspected literature. Remember his name. 'What a name to fill the speaking trump of future fame!'
It is such absurdities as these, practised alike by the designated censors of the Customs Bureau and the Post Office, that have led Senator Bronson Cutting of New Mexico to propose an amendment to this section of the Tariff Act.
In a debate that furnishes some ex-cellent reading to the Congressional Record, Senator Cutting declared his opposition to that section of the present tariff 1aw which I have quoted and he protested just as vigorously against the wording of the new Tariff discussion, which, in addition to its charge against 'obscene literature,' goes to the further extreme of forbidding the importation of 'any book, pamphlet, paper, writing, advertisement, circular, print, picture or drawing containing any matter advocating or urging treason, insurrection or forcible resistance to any law of the United States.' If we may judge by the first vote, there is strong sentiment on his side.
The Postal Censorship Law, as I have said, was originated by Anthony Comstock, the head of the New York Society for the Suppression of Vice. It was one of his weapons in a long and notorious crusade against what he considered to be indecent literature. The censorship of the Customs Bureau, on the other hand, was originated for the purpose of suppressing pornographic pictures and writing, and only through long usage has it come to be applied to all manner of books, many of them classics read and respected the world over. There is ample evidence to show that such bureaucratic censorship is erratic, ill-considered, and unjust; and there is ample evidence to show that censors once placed in authority will rigorously prosecute their charge, if only to justify their appointment.
Senator Cutting has insisted that each state should be permitted to determine for itself the books its people may read. This, it seems to me, is recommended not only by the Constitution but by common sense, but obviously it means that we shall have to take great care in the wording of our particular laws 'relating to obscene literature.' An eminent jurist has said that legislation is 'a compromise between articulate minorities,' and though he was not speaking of censorship, the truth of his words is clearly brought out by the history of this troublesome project.
If I read them aright, the early state laws in regard to obscene prints and publications were, as in England, framed with the express purpose of suppressing deliberate pornography. The word 'obscene' runs like a refrain in every one of them and I wish to point out that it is an imponderable word. Lawyers, when they have tried to convey its meaning, have generally followed the decision of Lord Chief Justice Cockburn, that 'the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.'
But, though we may not easily pin it down, there is no doubt -that many of us employ the word as if we were sure of what it means. In 1878 a group of prominent New York citizens, among whom were William E. Dodge, Jr., Morris K. Jesup, and J. Pierpont Morgan, organized, the New York Society for the Suppression of Vice. It was organized under a special act of the State Legislature and its guiding light was, of course, Anthony Comstock: The agents of the Society were given the rights of search, seizure, and arrest. The idea was contagious, and in a few years the Western Society for the Suppression of Vice, the New England Watch and Ward Society, and, in England, the National Vigilance Association were in existence. Vigilance committees may be necessary to a frontier society, but I contend that their interference is hardly called for in a cultured community which once was supposed to cradle liberty. Paternalism is out of favor to-day, and I believe there are many of us who object to the purpose of such organizations and who cannot approve of their actions. Granting that they perform a service in quietly ridding city life of some of its apparent contamination, yet the fact remains that their ferreting policy is out of keeping with the best American law and custom. The Watch and Ward Society is the only one to come under my observation; I have it on their authority that ninety per cent of their activity is devoted to matters other than censorship and I understand that of the sixty-eight books now suppressed in my state only eleven were subject to their complaint. But by the very threat of their action they constitute themselves the unofficial censors of the Commonwealth. This is strong criticism; I do not mean it to be harsh. For as a citizen I feel under definite obligation to the Society for its devoted and highly disagreeable work in suppressing pornography and for its war upon the contamination of the red-light districts.
Unfortunately, in their, zeal to run down and destroy Paris post cards, filthy pictures, and smutty pamphlets — which still seem to circulate among adolescents, — the Society has also felt it incumbent upon them to act as the unofficial censors of what our adults shall read; and, unfortunately, as I see it, the present Massachusetts statute is a ready weapon for such a crusade. Section 28 of Chapter 272 of the Massachusetts General Laws has been frequently modified. Its present wording — for which, I believe, the Watch and Ward Society is in part responsible — is briefly as follows: 'Anyone who imports, prints, publishes, sells or distributes a book, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language manifestly tending to corrupt the morals of youth, or an obscene, indecent or impure print, picture, figure, image or description manifestly tending to corrupt the morals of youth,' etc., will be liable to criminal punishment.
Let us examine this wording closely, for it is certainly far from just. It must be apparent to anyone that the phrase 'containing obscene, indecent or impure language' is an exceedingly strict qualification. Under these terms the Bible, the plays of Shakespeare, and all of the great novels could be suppressed; for, since a book to be suppressed need only contain 'obscene language,' — that is to say, an 'obscene or indecent' reference, paragraph, or page, — and since, to paraphrase English and American judicial opinions, that is obscene which tends to create obscene thoughts in the minds of those who are susceptible, it takes very little arguing to show that most contemporary novels, many contemporary biographies, and most of our great classics, when found in the hands of a moron, could be banned in Massachusetts on the strength — or weakness — of a single isolated passage. By their own statement the Watch and Ward Society take the whole book into consideration before making a complaint. Why should not the Massachusetts judge and jury be entitled to the same practice?
The actual procedure of complaint is something like this: Discovering in the hands of my little daughter a copy of Fielding's Tom Jones, I am made curious to see what it is that is amusing her. I read a few pages and am properly shocked. Hastily reaching for my hat, I march indignantly down to the bookseller who sold my child this trash and figuratively throw the book in his face. The bookseller defends himself by saying that he did not publish the book and has not read it. That does not give me the satisfaction I want, so I seek a policeman. With my pencil I mark the outrageous passages and ask him to read them. He is as shocked as I am and says he will take the matter up with the chief. He takes the book with him to headquarters and I go home to cool off.
Now the superintendent of police attorney — should my marked copy of Tom Jones be relayed to him — has it in his power, if he believes the book is actionable, to descend without warning on my bookseller end arrest him for selling a book 'containing obscene, indecent or impure language.' The victim will be brought to trial and compelled to defend the book under the terms of the Massachusetts statute. The jury, naturally, will be picked from those who have never read Tom Jones. But the lawyer for the defense may not read the whole book to them or defend the whole book before them. His defense must be centered on those passages which were complained of and those alone. Such was the procedure in the recent trials of Oil, by Upton Sinclair, and Dreiser's American Tragedy. Both books were examined and finally condemned on the strength — or again the weakness — of certain isolated passages. That is why no other publishers have felt it worth while to attempt to defend their books under the present Massachusetts law.
My sympathies go to the bookseller. In the last twenty years there have been well over half a dozen court cases, and in every instance — with the exception of the American Mercury case — the verdict has gone against the bookseller. Yet he does not publish the books, and in buying, often from dummy copies, the ten or twelve thousand new titles that are shown to him by salesmen each year it must be apparent that he can have at the outset, and often for a long time thereafter, only the vaguest notion of the contents of the books on his counters. Realizing that the Watch and Ward Society will be on the lookout for what they consider obnoxious books, he anticipates their complaints by asking them to notify him in advance of their taking any action. Upon their notification he is left with the choice of withdrawing the suspected book from his circulation or of running the risk of arrest and trial. He is human if he does the former and a martyr if he does not — and martyrs are rare in any community. Yet the former action on his part helps to establish the Watch and Ward Society as the virtual censors of our Commonwealth.
I do not wish to give the opinion. that the Watch and Ward Society are the only crusaders involved. As I have said, they have been responsible for eleven suppressions in the past two years. The complaints which withdrew the other fifty-seven books from circulation were made by zealots, the police, and, in one case, the librarian of the Athenaeum. Under the absurdly strict terms of the existing law no publisher other than Horace Liveright has felt justified in exposing his book and himself to a test case. A book could not be defended as a whole, and the fine and punishment — for this is a criminal law and gives one a criminal record — were hardly such as one would wish to incur even as a martyr. That is the reason why books like The World of William Clierold, by H. G. Wells, The American Tragedy, by Theodore Dreiser, Dark Laughter, by Sherwood Anderson, Elmer Gantry, by Sinclair Lewis, As It Was, by H. T., The Sun Also Rises, by Ernest Hemingway, and The Wayward Man, by St. John Irvine, — to mention a few which will not profit by any salacious publicity, — were suppressed in the city of Boston, and, if authorities wished, could have been suppressed anywhere within the Commonwealth, without trial. And that is why the publishers of All Quiet on the Western Front felt compelled to expurgate the English translation of their splendid novel. The book was printed in Massachusetts; its plates, should any unfavorable action have been taken, were open to confiscation. Printed copies might have been forbidden the mails.
All Quiet on the Western Front was published last June. Prior to publication, it had been adopted by one of the book clubs, at whose suggestion certain expurgations were made. In few instances verbal refinements were substituted for the 'jargon of the latrine,' but the only notable mutilation was the cutting out of a three-page hospital episode. Those who have read the German or English version find this scene one of the most tender aond appealing in the book, an opinion that was borne out in the recent Senatorial debate. Certainly the publishers have no hesitation in saying that their action has been more condemned than condoned, people being inclined t agree with Christopher Morley when he wrote, 'Here is a book that tells what modern war is really like, and the only things in it that we boggle at are the things that made even war seem momentarily human and tender.' Yet, in the face of the Massachusetts law, such prudery was considered expedient.
And what about the sixty-eight books which were actually suppressed? Why did they give cause for complaint, and whom did they offend? While it is not easy to inquire into the reasoning of those who take a morbid interest in other people's morals, we have here certain tangible evidence to guide us. 'It is desirable,' says E. M. Forster, the novelist, 'that people should not be corrupted, but there is no reason why they should not be shocked.' I submit that most of the suspected sixty-eight were banned because the ideas which they expressed on matters of sex and religion were shocking, not because the ideas or the language was such as to stimulate the reader's physical appetite. We know that a gentleman of high position objected to Elmer Gantry — presumably because it profaned his beliefs; we know that the Watch and Ward Society objected to eleven books, mostly novels — pre-sumably because of an anti-Victorian approach to matters of sex; we know a single clerical zealot objected to some thirty books and would have gone onto more had he not been stopped by his bishop; we know that the district attorney's office objected to nearly a score of novels sent them in angry remonstrance by a bookseller. The bookseller had been notified that they were taking action against some half-dozen titles. 'Why, if you ban those,' he said, 'I can send you twenty more, no better and no worse.' He did, and they did. I submit that these judgments are as erratic as any which were lodged by the postal or customs authorities. I submit that they are not such as we should be likely to receive had the books been fairly tried before a Massachusetts jury and judge and under the terms of a just law.
We have seen how in England and in the United States our book censorship laws have been derived from statutes originally framed as a protection against deliberate pornography. We have seen how these laws were extended in scope until they were able to be applied against books innocent as well as guilty, classics as well as the Memoirs of Fanny Hill. We have seen what erratic judgments are to be expected in bureaucratic censorship, as under the crusading fervor of paternalistic societies. In view of such evidence it is easy to cry out against censorship generally. I believe, and indeed my whole paper is in support of the theory, that there must be legal controls on books, and I believe that the law courts are a logical place for their examination and that our judges, if not our juries, are qualified to decide upon the ques-tion of whether or not they are obscene. I believe very earnestly that the law should be so worded as to take the whole book into account. Such a law is enforced in New York; such a reform is urgently needed in Massachusetts if our reading is to be untroubled by self-appointed censors. The Watch and Ward Society have intimated that they judge a book in this way, and, furthermore, that they might endorse such a rewording of the present statute as would make this the legal practice as well.
If the statute is so worded as to ensure the judgment of the whole book rather than the judgment of an isolated passage, publishers will feel justified in defending, as they do in New York and elsewhere, books which have been the subject of complaint. If the complaint is borne out by the decision of the jury and judge, the publisher may be considered to have received fair warning against such continued practice, and if the book is given a clean bill of health no more will be thought about it. Surely such an arrangement is infinitely superior to the present situation in Boston when at the insistence of private, and at times irresponsible, citizens books are banned in the city, without trial, yet sold like notorious hot cakes throughout the rest of the state. The hypocrisy of the present situation, the injury which it does to literature, the notoriety which it too often bestows on cheap books which would never otherwise have been brought to readers' attention, the contempt for law which it encourages among Massachusetts citizens, and the light of absurdity in which we find ourselves before the rest of the world these are the results of an obsolete statute and of a virtual but unofficial censorship in Massachusetts.
The vital clause in that Act runs as follows: 'If upon complaint there is any reason to believe that any obscene books, etc., are kept in any house or other place, for the purpose of sale or distribution, and upon proof that one or more such articles has been sold or distributed in connexion with such a place, justices may, upon being satisfied that such articles are of such a character and description that the publication of them would be a misdemeanour and proper to be prosecuted as such, order by special warrant that such articles shall be seized, and after summoning the occupier of the house, the same or other justices may, if they are satisfied that the articles seized are of the character stated in the warrant and have been kept for the purpose aforesaid, order them to be destroyed.' — Author
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